Abas v Charnock

[2001] NSWCA 404

CITATION:	Abas v Charnock [2001] NSWCA 404
FILE NUMBER(S):	CA 40090/01
HEARING DATE(S):	8 November 2001
JUDGMENT DATE:	8 November 2001
PARTIES :	Rola Abas - Appellant Corey Joseph Charnock (by his next friend Francis Charles Charnock) - Respondent
JUDGMENT OF:	Powell JA at 23; Giles JA at 1

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	7291/96
LOWER COURT JUDICIAL OFFICER :	Knight DCJ

COUNSEL:	G M Watson - Appellant M Joseph QC & R O'Keefe - Respondent
SOLICITORS:	Stewart Cuddy & Mockler - Appellant Firths, The Compensation Lawyers - Respondent
CATCHWORDS:	DAMAGES - findings credibility based - errors suggested - findings upheld - no question of principle. ND
CASES CITED:	Rosenberg v Percival (2001) 75 ALJR 734.
DECISION:	Appeal dismissed with costs.

CA 40090/01
DC 7291/96

POWELL JA
GILES JA


8 November 2001

ABAS v CHARNOCK

Judgment

1 GILES JA: This is an appeal from a verdict given and judgment entered in proceedings heard by Knight DCJ in February this year. The plaintiff claimed damages for personal injuries suffered when struck by a motor vehicle on 1 September 1995. Liability was admitted, and his Honour assessed damages, before any interest, at $155,795.46. The major components of the damages were non-economic loss of $67,680 and future loss of economic capacity of $75,000.

2 The plaintiff was aged twelve years at the time of the accident. He complained of soreness in his neck, back and right ankle, and was taken to Fairfield Hospital. No skeletal damage was found, and soft tissue injury was diagnosed. He was discharged from the hospital in a wheelchair and with a neck brace.

3 The plaintiff was absent from school for five to six weeks. The injury to his ankle recovered after a little time, and did not thereafter feature in the proceedings, but on the plaintiff’s case the pain in his neck and lower back remained, persisted to the time of the trial, and was expected to persist thereafter and had an effect on his earning capacity. The plaintiff had an already impeded earning capacity, in that he had been diagnosed at an early age with cerebral palsy and intellectual retardation, and that was a complicating feature in the assessment of damages.

4 Knight DCJ said that although there were some problems with the reliability of the plaintiff’s memory, he generally accepted the plaintiff’s evidence, and in particular was satisfied that the plaintiff continued to have neck and lower back pain and to have headaches and nightmares and engage in sleepwalking. He accepted the opinion of Professor Ouvrier, who examined the plaintiff both before and after the accident, that the pain was due to soft tissue injuries to the spinal ligaments and paraspinal muscles of the neck and lumbosacral region.

5 At a later point in his reasons, when dealing with a submission on behalf of the defendant that the plaintiff was not as incapacitated by the effects of the accident as he had said in his evidence, his Honour noted that counsel for the defendant relied in particular on three matters. He gave reasons for nonetheless accepting the plaintiff’s evidence as to his incapacities resulting from the accident, and in that connection referred to a report of Professor Ouvrier in which, with the benefit of examinations of the plaintiff both before and after the accident, Professor Ouvrier said that there was objective evidence of limitation of movement and tenderness in the lumbosacral region which had not been evident prior to the accident. His Honour said that overall he was satisfied that the effect of the injury suffered in the accident was significantly to increase the incapacities that the plaintiff had prior to the accident.

6 The extent of the plaintiff’s incapacities as a result of the accident was, of course, central to the assessment of damages, and was the principal subject of challenge on appeal.

7 The defendant first sought, by way of a pre-emptive strike, to overcome the principles most recently restated in Rosenberg v Percival (2001) 75 ALJR 734 concerning the advantage enjoyed by the trial judge in assessing credibility and making findings of fact. It was submitted that in the present case what his Honour had said about the plaintiff was only “lukewarm”, and that his Honour had, indeed, recognised that the plaintiff had frailties of memory.

8 Nonetheless, it seems to me that the principles in question apply. There was a contest before his Honour concerning credibility, apparently both in the sense of believability and in the sense of reliability, and notwithstanding what was put to him on both those aspects, his Honour generally accepted the plaintiff’s evidence and accepted that he had the pain and other effects on his ability to function of which he gave evidence. I cannot see that that was not something to which the advantages enjoyed by his Honour contributed, and in my view his Honour’s conclusion that the plaintiff was affected as he said is to be approached in accordance with the Rosenberg v Percival principles.

9 I should refer in that respect to his Honour’s reliance upon the report of Professor Ouvrier. It was submitted that the reliance was unsound, because Professor Ouvrier’s reference to objective evidence of limitation of movement and tenderness in the lumbosacral region did not bring into play true objectivity. Rather, it was said, Professor Ouvrier himself was dependent upon the credibility and reliability (more specifically the former) of the plaintiff when examining him, and upon what the plaintiff said at the time of examination about limitation of movement and tenderness.

10 This was not raised with Professor Ouvrier, who did give evidence, and it does not seem to me it is necessarily so. Sometimes, of course, an examining doctor will be entirely or considerably dependent on what the patient says, but not always, and experienced doctors can determine matters such as limitation of movement and tenderness regardless of what the patient says and can determine those matters in a way which they regard as objective in a real sense. I see no reason to conclude that Professor Ouvrier’s opinion was not open to be relied on in the manner in which Knight DCJ relied on it.

11 The challenge to his Honour’s findings focussed on four matters: first, sleepwalking; secondly, sports; thirdly, agricultural studies; and fourthly, bike riding. In each case the thrust of the submission was that the plaintiff’s evidence on the relevant matter, was to be contrasted with other material, in evidence and from the contrast should be regarded as not credible or unreliable so that the findings of Knight DCJ were undermined and liable to be overturned.

12 I am not at all sure that the Rosenberg v Percival principles are not themselves a complete answer to this challenge, at least in this case where none of the comparative material to which we were taken was conclusive against the plaintiff’s evidence or his Honour’s general acceptance of his evidence. However, it does not seem to me that any of the four matters is particularly compelling in the defendant’s favour.

13 First as to sleepwalking, the plaintiff gave evidence that after the accident he engaged in sleepwalking as reported to him by his father. This was contrasted with material in a psychological assessment report, which was a little mixed but amounted to the plaintiff’s stepmother saying to the assessor that he had engaged in sleepwalking prior to the accident a little bit but did so more after the accident, although she really could not say how much more. I do not think that is a very significant attack on the plaintiff’s evidence.

14 Secondly as to sports, one of the matters on which the defendant relied before Knight DCJ for the submission that the plaintiff was not as incapacitated by the effects of the accident as he said in his evidence was what was said to be a discrepancy between the plaintiff’s claimed lack of capacity to play sports after the accident and his school reports for that period. His Honour said that there was some force in the submissions which included that matter, but that he nonetheless accepted the plaintiff’s evidence as to his incapacities resulting from the motor vehicle accident. In relation to sports and the school reports, his Honour said that because the reports did not refer to the plaintiff’s impediments from his cerebral palsy and rather referred to his making great efforts at, for example, cross-country running and soccer and volleyball, there was in truth not an inconsistency.

15 The comments in the reports were of the “has tried hard” and “made a great effort” kind, and his Honour clearly considered that the reports were written by way of encouragement and without starting from the standard of a person without physical handicap and so were not a good foundation for the discrepancy on which the defendant relied. We have been taken to the plaintiff’s evidence and to the reports. It seems to me that the approach his Honour took was entirely open to him, and indeed, it is one which I respectfully think was correct.

16 Thirdly as to agricultural studies, the plaintiff gave evidence to the effect that prior to the accident he was keen on and good at agricultural studies and had come first in his class. This was contrasted with the absence of any reference to agricultural studies in the reports for the 1995 year and with a favourable report for the first two terms of the 1996 year for agricultural studies. So, it was said, the plaintiff’s evidence must have been incorrect, and his Honour’s opinion of the plaintiff’s credibility when one would have expected the plaintiff to have a reasonably good recollection of such a matter should be doubted, leading onto doubt (at the least) about the extent of incapacity brought by the accident.

17 Knight DCJ did not specifically advert to this. However, it seems to me that the answer to it is much the same as the answer to the defendant’s submission to which I have last referred. His Honour when dealing with the previous matter said that counsel for the defendant relied “in particular” on three matters, including the matter concerning sports. Perhaps because it was not at the forefront of the submissions of counsel for the defendant, he did not when reconciling the reports with the plaintiff’s evidence as to sports deal also with any discrepancy between the reports as to agricultural studies and a lack of capacity after the accident to engage in agricultural studies to the same extent as prior to the accident. Perhaps also his Honour had in mind what he considered to be the answer to the other two matters on which counsel for the defendant relied below in this connection, namely that the explanation for them was the frailty of human memory. I am not satisfied that the extent of discrepancy between the plaintiff’s evidence as to agricultural studies and what the reports said and did not say is such as to warrant this Court intervening in his Honour’s general acceptance of the plaintiff’s evidence and particular acceptance of the extent of the incapacity as resulting from the accident.

18 As to bike riding, which was another of the matters on which counsel for the defendant relied before his Honour, in brief it was said that the plaintiff’s evidence of his inability to ride a bike after the accident was not consistent with evidence that he had been taken to Liverpool Hospital following a fall from a bike in mid 1996, or with what would have to be regarded as something of a throwaway line not otherwise investigated in a medical report indicating that he rode his bike to work when he had work for some five or six weeks at some time after the accident. It is sufficient to say that, having been taken to the evidence, I do not think that there is any real discrepancy.

19 Overall, therefore, I am not satisfied that the defendant has succeeded in displacing the central findings on which the assessment of damages was made. It was acknowledged that, if that was so, the challenge to non-economic loss could not succeed. It was submitted that nonetheless the $75,000 for future economic loss was excessive.

20 There was discussion in the course of argument of his Honour’s reasoning, and I think that in the end the defendant accepted that the reasoning process was not itself erroneous. Nonetheless it was submitted that the result, the figure of $75,000, was excessive and in particular it was said that it was shown to be excessive by comparison with the $4,000 allowed for past economic loss.

21 In my opinion the reasoning process which his Honour employed was open to him, and the figure of $75,000 to which it led (the word “led” being used rather loosely because in the circumstances, it was a very broad estimation) was open to his Honour. I do not think that the asserted disconformity with the past economic loss is a real disconformity. The plaintiff’s uninjured earning capacity in the few years after he left school at the age of fifteen or sixteen would have been much less than his uninjured earning capacity as an adult. That, it seems to me, explains the figure of $4,000 rather than some higher figure which in a broad way a comparison with the $75,000 might have led one to expect.

22 Despite the submissions attractively put on the defendant’s behalf, in my opinion the appeal should be dismissed with costs.

23 POWELL JA: I agree. That is the order of the Court.

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